International Environmental Law

International Environmental Law has developed mainly in response to incidents in which the economic activities of one nation cause environmental damage, injury to persons, and economic costs to another country. Most international environmental legislation, treaties and principles post-date the creation of the United Nations in 1948.

Principles of International Environmental Law

International Environmental Law has developed ad hoc. Rather than arising from national rights and obligations, legal principles have arisen primarily in response to pollution emergencies and resource exploitation and conservation disputes.

The sources of international environmental law include treaties, customary rules, legal principles, judicial opinions, and decisions by international institutions and other bodies regarding disputes. There are seven main principles of international law:

State Sovereignty

Specifically the right to exploit natural resources, with an obligation not to cause damage to the environment beyond the national borders.

Principle of Preventive Action

This principle requires states to take actions to reduce, limit or control activities which might cause damage to the environment. Specifically, prevention is where consequences are scientifically certain and actions are taken ahead of the damage occurring. The Principle of Preventive Action relates only to protecting the environment by restricting actions within a state's own jurisdiction.

Principle of Good Neighbourliness and International Co-operation

Article 74 of the UN Charter encourages the principle that reflects states' commitment that 'their policy in their metropolitan areas must be based on the general principle of good neighbourliness'. States should not exercise their rights in a way which infringes upon the rights of other states. This principle is reflected in many treaties, international acts and non-binding instruments, providing for instruments such as environmental impact assessments, and information exchange, consultation and notification.

Principle of Sustainable Development

Sustainable development is defined by the 1987 Brundtland Report as development that 'meets the needs of the present generation without compromising the ability of future generations to meet their own needs'. The principle of sustainable development encapsulates the dual requirement of economic planning not to exceed the capacities of the biosphere to provide resources, and to absorb wastes, while ensuring that overall living standards improve.

In answer to the apparent dichotomy that economic growth necessarily means depletion of resources, the Brundtland Report asserts that 'technology and social organisation can be both managed and improved to make way for a new era of economic growth'. There are four elements to sustainable development: inter-generational equity, sustainable use, equitable use, integration of environment and development.

Precautionary Principle

Where there is uncertainty, the risk of irreversible damage to shared natural resources should be avoided by a precautionary approach. Lack of scientific proof should not be the reason for going ahead with potentially risky actions, where there are good grounds for concern.

Principle 15 of the 1992 Rio Declaration: 'In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

Article 191 EC Lisbon Treaty: "Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay."

Although there is no common formulation of the principle, there are three basic elements involved: 1. regulatory inaction threatens non-negligible harm, 2. significant scientific uncertainty on cause and effect relationships, 3. as a result, regulatory inaction is unjustified.

Polluter Pays Principle

Those parties responsible for causing pollution should pay the consequential costs of that pollution.

Principle of Common but Differentiated Responsibility

This principle acknowledges the difference in responsibilities and capabilities between developed and developing nations. It asserts the common responsibility of all states for environmental protection, under consideration of each state's contribution to the environmental pollution, as well as ability to prevent, reduce or control such pollution.

Legal Status of International Law

Principles are not in themselves legally binding, but serve as guidelines for the formulation of more-binding treaties and other instruments. Principles are often listed in the preamble to treaties and other environmental and jurisprudence documents.

As was clearly illustrated in the Paris Climate Change Convention, Dec 2015, developing nations prefer to incorporate principles in the bodies of treaties, while developed nations tend to prefer to avoid ambiguity by not including the principles directly within the body of the texts.

Human Rights and the Environment

The association of human rights and the environment underlines that the degradation of environmental standards directly infringes internationally-recognised human rights. There is also the principle that people have an express right to a healthy environment.

List of Selected International Law Documents

Brundtland Report 1987 "Our common future"

Published by the UN's World Commission on Environment and Development (WCED). The former Norwegian prime minister Gro Harlem Brundtland was the chairperson of this commission.

Rio Declaration 1992

Convention on Biological Diversity, CBD 1992

Kyoto Protocol 1997

UN Charter

Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft 1972

UN Convention on the Law of the Sea (UNCLOS) 1982

Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992

Vienna Convention for the Protection of the Ozone Layer 1985

Convention on the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) 1992

Convention on the Prohibition of Military or Any other Hostile Use of Environmental Modification Techniques 1977 (ENMOD Convention)

International Organisations involved with IEL

WTO

European bank for Reconstruction and Development

CITES Convention on International Trade in Endangered Species

UNEP

World Bank

GEF Global Environment Facility

World Commission on Environment and Development 1987 (Brundtland Commission)

EU Law

Although the initial treaty of the European Union had no specific environmental policy, it has since accumulated over 500 Directives, Regulations and Decisions. Environment has been a core part of EU policies since the 1987 SEA (Single European Act) created the legal basis for EU environmental policy.

The leadership role in international cooperation for protecting the global environment has been taken up by the European Union. The EU's Seventh Environmental Action Programme and the Lisbon Treaty are strong statements of the EU's commitments to international agreements for equitable management of the global commons.

A Brief History of EU Treaties

There have been three treaties and several other acts and declarations which have shaped the EU's environmental policy course.

Treaty of Rome 1957

The Treaty of Rome is the 1957 founding treaty of the European Economic Community, which became the EC (European Community), and today's EU in 1993.

Article 2 of the Treaty of Rome:

The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it.

Single European Act SEA 1986

Although primarily concerned with the removal of internal barriers and advancing political union and economic cooperation, a chapter specifically on the environment was included in this amendment to the EC Treaty.

Maastricht Treaty on European Union TEU 1992

Maastricht was the first significant change to the structure of the EC Treaty. The three treaties (ECSC, EURATOM, and EC) were amalgamated to the single European Community. To this were added the second 'pillar', foreign and security policy, and the third 'pillar', home affairs and justice policy.

The Maastricht TEU incorporated fundamental human rights, which included every national of a Member State being concurrently a citizen of the EU. TEU also set up a timetable for the EMU (Economic and Monetary Union), which saw the creation of the Euro Zone in 2001-3.

Treaty of Amsterdam 1997

The modern version of the Treaty of Rome, the 1997 Treaty of Amsterdam, includes the term 'sustainable' within its policy declaration:

The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.

Treaty of Lisbon 2007

The Treaty of Lisbon amends the Maastricht Treaty (1993) and the Treaty of Rome (1958), brought into being after the proposed European constitution was rejected by voters in France and Holland in 2005.

Under the terms of the Treaty, Environment falls under the 'Shared Competence' policy category, which rules that "Member States cannot exercise competence in areas where the Union has done so."

Article 37 of the Charter includes Environmental Protection: 'A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.'

Article 3 of the TEU states the objectives of the EU and defines the principle of sustainable
development in Europe with its three elements (economic, social and environmental): ‘The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It
shall promote scientific and technological advance.’

EU Institutions

The EU has the following institutions:

The Council of Ministers

The principal decision-making body, consisting of one representative from each member state. These are usually ministerial level. The presidency is for a six months term, and in January 2016 was held by the Netherlands. The Council meets at Justus Lipsius, Brussels.

The European Commission

Executive body. Meeting place is Brussels, and Luxembourg. The Commission has a staff of 23,000, distributed among 24 departments. The Commission applies the 'Precautionary Principle', ensuring pre-emptive regulation to prevent damage to the environment or human health, in such areas as combating climate change and restricting genetically modified organisms.

The European Parliament

751 members, Strassbourg. Elections are held every five years, and currently has a 42.5% voter turn-out from the 375 million eligible voters. The largest party is EPP (European People's Party), with 216 seats, while the Greens-EFA (European Free Alliance) have 50 seats. Rebecca Harms and Philippe Lamberts are the leaders of the Greens-EFA group in the EP.

The Court of Justice of the European Union CJEU

Located in Luxembourg. Consists of three courts: Court of Justice (ECJ), General Court, and Civil Service Tribunal.

European Central Bank

Established in 1998, this bank administers the Eurozone (19 members) monetary policies.

EU Environmental Policies

A top priority of the EU environment policy is mitigating climate change. To achieve this, in 2007, EU member states agreed to achieve a 20% renewable energy rate across the EU, enabling CO2 emissions to fall to more than 20% 1990 levels by 2020. There is an EU emissions trading system, which internalise carbon emissions within the economy.

Natura 2000: network of nature conservation sites.

REACH: Registration, Evaluation and Authorisation of Chemicals, 2006. REACH governs the production and use of chemical substances, and their respective potential impacts on human health and the environment.

Water Framework Directive: commits European Union member states to achieve good qualitative and quantitative status of all water bodies (including marine waters up to one nautical mile from shore) by 2015.

7th Environment Action Programme (EAP)

The 7th Environment Action Programme (EAP) of the EU is the current plan governing EU environmental policy until 2020. In the preamble, it states:

"In 2050, we live well, within the planet’s ecological limits. Our prosperity and healthy environment stem from an innovative, circular economy where nothing is wasted and where natural resources are managed sustainably, and biodiversity is protected, valued and restored in ways that enhance our society’s resilience. Our low-carbon growth has long been decoupled from resource use, setting the pace for a safe and sustainable global society."

General Union Environment Action Programme to 2020: Living well, within the limits of our planet 7th Environment Action Programme.pdf (Courtesy of Publications Office of the European Union)

EU Lisbon Treaty

TITLE XX Environment Article 191 (ex-Article 174 EGV)

1. Union policy on the environment shall contribute to pursuit of the following objectives:

- preserving, protecting and improving the quality of the environment,

- protecting human health,

- prudent and rational utilisation of natural resources,

- promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union.

3. In preparing its policy on the environment, the Union shall take account of:

- available scientific and technical data,

- environmental conditions in the various regions of the Union,

- the potential benefits and costs of action or lack of action,

- the economic and social development of the Union as a whole and the balanced development of its regions.

4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned.

The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.

Quote of the day...

"Working for the church means stopping all brain activity," explained Luca Pacioli. "They already know everything there is to know."
"But, you're a churchman...," said Sean. "You're dressed as a monk?"
"I know," shrugged Luca. "I find it hard to kick the habit."